#ThisIsNotConsent

Following #ThisIsNotConsent protests across the country after the Cork Rape Trial, Leo Varadkar has commissioned a legal expert to examine rules around evidence in rape trials. The government had been forced to listen and respond, and Steph Hanlon argues it is important to push for more urgent reform of the legal system, while organising for wholesale societal change to rid out systemic sexism.

#ThisIsNotConsent and the Cork Rape Trial

On Monday 5 November, a jury of eight men and four women took one and a half hours to reach their unanimous verdict of not guilty against a 27-year-old man accused of raping a 17-year-old girl in a laneway.

The Cork Rape Trial, as it has come to be known, saw Elizabeth O’Connell SC ask the jury to take into account the victim’s underwear, a lace front thong, citing that this choice of underwear might be offered up as proof of the victim’s interest in sex:

“Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”

Mr Creed SC for the prosecution later said to the jury:

“You decide if there was sexual intercourse between them. You decide if there was consent. You have heard her say she did not consent. You have heard him say she did consent. The major issue you have to deal with is whether she consented to sexual intercourse. It is one way or the other. Either she did or did not. If you are satisfied, she did not consent and that he knew she did not consent then you convict.”

The Cork Rape Trial and particularly the unchallenged insinuation that a woman’s underwear is a measure for whether or not rape is acceptable, was an indictment of a system that we already know to be inadequate and ineffective, especially in cases involving rape. The Rape Trial in Belfast was a watershed moment just months before, in terms of the treatment of victims in the court system. The eruption of public protest reflected national anger, which had been bubbling below the surface for some time, and disgust at the conduct of the case, and this has been magnified by the court case in Cork. People North and South are seeking to actively challenge a judicial system which is rampant with prejudice, bias and victim blaming.

This is a good thing, and while the government is feeling the pressure, we should respond with more and push to win much needed reforms. Our fight is for a different kind of society — socialism. But we should also fight for reforms that can improve the day to day lived experiences for oppressed groups and the working class. There are three main specifics that I think must be a part of such reforms: a change in the legal interpretation of consent in Ireland, an end to victim blaming and a challenge that goes beyond rape trials.

1. The Legal Interpretation of Consent in Ireland

The issue of consent has emerged as Irish society’s “elephant in the room”. It was central during the referendum on the 8th Amendment. It was a central issue in the Belfast Rape trial and the subsequent #IBelieveHer protests, as well as the Cork Rape trial and #ThisIsNotConsent protests. There has developed a sense of urgency to create a culture of consent, in the absence of the court or the legal system of the land to create one.

Last year, the Irish government inserted a specific definition of consent into criminal law. Though as recent trials have shown, it goes nowhere near far enough and does not hold up in grey areas in court. It states that a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act. Under Section 48 of the Criminal Law (Sexual Offences) Act (2017), a person does not consent if they;

Permit the act to take place because of the application of force, or a threat;

Are asleep or unconscious;

Are incapable of consenting because of alcohol or drugs;

Are suffering from a physical disability which prevents them from communicating consent;

Are mistaken as to the identity of the other person;

Are unlawfully detained at the time.

In Ireland, the onus of proof is on the victim. This element is crucial in cases of rape and sexual abuse because it bolsters the victim precipitation theory, which posits that in a given criminal act the victim themselves behave or act in ways that inadvertently may contribute to their own victimisation. This consequently challenges victims’ innocence by holding them responsible for the attack, such as in the Cork Rape Trial.

This year saw Iceland pass landmark legislation on sexual consent which makes sexual relations illegal unless you have the other person’s explicit consent. This shift in legislation places the consent burden on the accused – rather than the court focusing on whether the victim said ‘no’ or tried to fight back, the accused will have to prove the other person consented. A similar shift in legislation would make huge changes to Ireland’s criminal law as it stands – but what the Cork trial has highlighted is that even in a jurisdiction where rape is defined on the basis of lack of consent, numerous obstacles remain in the way of women’s access to justice for rape.

2. Victim Blaming

The Irish criminal justice system is permeated by a culture which normalises sexual violence and blames rape victims for the attacks against them. It influences both the outcomes of rape trials and the treatment of rape victims. As such, victim blaming is found at all levels of the ongoings of the judicial system. We see it in the court system, the method of questioning victims and the mainstream media treatment of survivors.

In a response to the Cork Rape Trial and the ensuing backlash, Leo Varadkar has commissioned an “eminent” expert to examine the rules around evidence in court cases;

“We have asked a very eminent person to examine, particularly around the rules of evidence as to what kind of evidence can or cannot be admitted in court. This is an area that absolutely requires examination, we are committed to doing that and we are going to do that. If we need to make changes we will.”

In this though, he also made it clear that they would not support a shift in legislation where the accused must prove that they had explicit and voluntary consent:

“But at the same time, what we can never move away from is that basic democratic idea that someone is innocent until proven guilty, and anyone who is accused is entitled to put forward their defence.”This report will only addresses the surface issue, not how consent is dealt with. Nor will it deal with the root of the problem – the misogynistic attitude that pervades not only the court system but the political system, and which often rears its ugly head in judicial and legislative proceedings around sexual assault, rape and consent. This controversy around what constitutes as evidence is an uncomfortable reminder of how far we have to go to rid society of sexism, but the measures Varadkar has taken will not go close to getting to the root of the problem. In fact, they will be fundamentally limited by the confines of the political and legal systems that will oversee them.

3. Rape in the Irish Criminal Justice System

Ireland’s record on tackling rape and sex crimes is shocking and shameful. There is a huge discrepancy between reported rape and sexual assaults and the rate of prosecution. In 2015, out of the 2,110 reported rapes and sexual assaults just 750 were resolved. In relation to cases that were “resolved” – statistics from the Central Statistics Office and the Irish Courts system show that 90% of recorded rapes and sexual assaults end in something other than a conviction. Although sentences for rape are getting longer, careful analysis reveals a very low proportion of alleged sexual offenders make it to the point of conviction in order to be sentenced.These numbers aren’t unusual – similar discrepancies appear annually and internationally. However, this gap is only present for sexual offences – it doesn’t exist for any other violent crime. Going back to all rape cases resolved in court– including the ones that went to trial–the conviction rate is 25 percent. Rape is the only offence for which a sentence was fully suspended and the second highest in partially suspended imprisonments. Out of the 2,110 recorded rapes and sexual assaults in 2015, only 10% of alleged offenders will see any jail time. Yet around the same time, in 2014, retired High Court Judge Barry White said that he “didn’t believe that judges need training in relation to sentencing, in cases of a sexual nature”. He is wrong, of course. The shameful stats around Ireland’s handling of sexual crime are more than enough to deter victims from reporting – victims have said as much, many times. And a criminal justice system that deters victims from reporting crime is failing at the most fundamental level.

In the days after the Cork Rape Trial, Minister for Justice Charlie Flanagan told the press that he was “very concerned at the practice and procedure surrounding rape trials”, yet his own department has played a key role in the provision of inaccurate and unreliable data in relation to crime statistics on rape and sexual violence. There are still ongoing questions as to whether reliable data on sexual violence is available. The CSO released a press statement concerning the decision to resume Recorded Crime Statistics, and have noted that;

“PULSE data is now subject to a number of separate ongoing quality reviews and does not currently meet the CSO’s standards for completeness and accuracy.”

Asking for it? Post-Repeal Ireland and continuing the fight for Equality

In an article published on this website earlier this year, Becca Bor looked at the transformation that Ireland is going through as a result of the Repeal movement – personal stories of abortion and reproductive health rippled across society and have been realised as common issues thanks to the work of social media platforms such as #InHerShoes and The Everyday Stories Project. Many of these conversations related to issues of sexual abuse and rape. The politicisation of personal experiences has empowered many more people to speak out – through viral social media campaigns such as #IBelieveHer and #thisisnotconsent protest North and South, and viral campaigns worldwide. In a Post-Repeal Ireland, there has been a massive shift in how we think about bodily autonomy.

Leo Varadkar was quick to celebrate the victory of the Repeal campaign as the “culmination of a quiet revolution”, discarding decades of marches, direct actions, protests and campaigns which shamed generations of the establishment and demanded change. Suddenly he is concerned about rape trials. Like with the Repeal movement, “we can’t wait”. “Concern” is not action. Rape trial reform is needed, and we cannot wait any longer. This toxic disease is central to the Irish establishment parties and is entrenched in the Irish political landscape. Change will not come from those in the establishment but from demands and pressure on the streets.Our demand is clear: If a person is raped, blame the rapist – not the victim. We don’t need “concern” about the discrimination in the Irish legal system – we need change. And we are angry enough and there are enough of us and memories of Repeal fresh enough that we can see the potential to change this. Like with Repeal, we need to organise, mobilise and continue to agitate until we affect real change in the judicial system – change that actually addresses the scale of rape and sexual abuse in Irish society.

We need to fight and win these reforms urgently. But what is also clear, is that we cannot trust the establishment to implement them. We cannot trust the Dáil or the courts because they are fundamentally limited by system they operate in.

And in this case, that system – capitalism – perpetuates the very inequalities and the sexism that permeates the courts. Which is why in order to win real equality we must fight urgently for reforms, but we must also continue to fight to overcome the system which perpetuates it. To fight for a different kind of society based on equality and which rejects the shameful sexism that hangs over Irish institutions.